Marriage Flashcards
What is the definition of marriage?
The status of a man and a woman united legally as husband and wife, or the ceremony or act by which the relationship is created.
What are the formalities needed to have a valid marriage?
(1) LICENSES - A marriage license expires in 60 days if not used.
(2) AUTHORIZATION TO PERFORM MARRIAGES - Ministers can be licensed by court to perform marriages, but “instant” ministers cannot solemnize marriage. Judges need no authorization. The ceremony also requires a witness and an exchange of promises.
(3) CORRECTIVE STATUTE - The validity of a marriage solemnized by a nonauthorized party is not affected if otherwise lawful and either party believes they were lawfully joined.
(4) COMMON LAW MARRIAGES - cannot be created in VA but will be recognized if entered into in a state where they are valid.
What are the two major ways to terminate a marriage?
Annulment and Divorce
When assessing the validity of a marriage under an annulment, what is a void marriage? what is a voidable marriage?
A void marriage requires no judicial declaration of nullity, whereas a voidable marriage does. A voidable marriage can be ratified; a void marriage cannot.
Void marriages include…
(1) Bigamous unions
(2) Incestuous marriages
(3) Marriages were one or both parties are under age 18 and do not have parental consent
(4) Same-sex marriages or civil unions
(5) Marriages entered into in violation of licensing or solemnization formalities.
Voidable marriages include….
- MENTAL INCAPACITY at time of marriage (illness, disability): Can waive any claim for annulment if continue marriage after the problem is removed. Need a guardian to pursue an annulment (cancel the marriage).
- DURESS: shot-gun marriage (physical threat- married with a gun to head) Waivable when the threat is removed.
- INCURABLE INTIMACY - couple that does not have sex before marriage and had sex on the first night of marriage and cannot have sex then the marriage is voidable but the inability to perform must be incurable (cannot have sex at all). Waiver does not involve cohabitation.
- FRAUD (most likely to be tested): misrepresentation of or concealment of information going to an essential aspect of the marriage by one party prior to the marriage (e.g. one tells a big lie or keeps a big secret from the other - must be relevant to an essential aspect of the marriage);
Codified basis of annulment on fraud grounds:
- FELON: convicted of a felony;
- CHILD W/ ANOTHER: carrying another man’s child or impregnate another woman;
- you are/were a PROSTITUTE.
Other clear topics that are ground for annulment : - - Lying as to religion, beliefs or how observant you are;
- Lying or secrets about sex (sexual history but must be significant) or procreation (can’t have kids);
BUT
- Lying about money, property, or social status are not grounds for an annulment.
Court uses its discretion.
Where are divorce actions heard?
Go to the chancery side of the circuit court or family law court
What is required for the court to have subject matter jurisdiction?
Need one spouse domiciled in VA and bonafide residence for 6 months in the state.
When does a court need personal jurisdiction?
Court needs personal jurisdiction (ever lived in VA, had child in VA, executed an agreement) to enter collateral/personal orders (money remedies). Otherwise have a due process problem.
What are the preferred venues for divorce proceedings?
- Jurisdiction where parties last lived together as spouses
- Where the P lives OR
- Where the D lives.
- If file elsewhere and neither parties objects and the judge is okay with that then venue is permissible.
Can a void or voidable marriage be waived?
The grounds that make a marriage void cannot be waived by the parties. Grounds that make a marriage voidable are waivable.
What is the effect of cohabitation after a party has knowledge of facts that make an annulment voidable for reasons of lack of caapcity, fraud, or duress?
Acts as a waiver. No annulment is granted for reasons of lack of mental capacity or fraud or duress if the party aggrieved has cohabited with full knowledge of the facts (ratification), and no action may be brought two years after solemnization of the marriage.
What is Divorce a Mensa et Thoro (Divorce from Bed and Board)
This is, in effect, a legal separation. Personal and property rights of each party are protected. Neither party may marry during the life of the other.
What is Divorce a Vinculo Matrimonii (Absolute Divorce)
This is complete and absolute divorce. It extinguishes the right of survivorship and converts estates by the entirety into tenancies in common.
What are the statutory grounds for Divorce a Mensa et Thoro? Is there a waiting period required to bring this action?
(1) cruelty and reasonable apprehension of bodily harm (2) abandonment or desertion (for any period, need not be one full year); one year after can ask court to change it for an absolute divorce can also ask the court to void the divorce.
No waiting period is required to bring this action.
